2/18/24, 4:35 PM Jus cogens and human rights – International Human Rights Law
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INTERNATIONAL HUMAN RIGHTS LAW
CONTENTS
15. Jus cogens and human rights
PROF. NITIN GOMBER
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Introduction
Established by Vienna Convention on the Law of Treaties, 1969.
Ar.53, VCLT-a norm which is accepted and recognized by the international
community of States as a whole.
It is such a peremptory rule of International Law which overrides any rule or
agreement that is in conflict with it.
Must be followed by all nations of the world and its nature is such that no
derogation is permitted from such a rule.
According to Ar.66, VCLT it is the ICJ that ultimately decides what a jus co-
gens norm is, if there’s disagreement between states.
Learning Outcomes
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Students will be familiarized with Jus Cogens, Obligations Increase Font Size
Erga Omnes and
Judicial Decisions.
Students will learn how to comprehend a legal issue and to find and apply le-
gal rules to a given situation/case through background readings and case-
law analysis.
The concept of Jus Cogens
Jus cogens is in fact a Latin term which means ìCompelling lawî. It essentially
means that it is such a peremptory rule of International Law which overrides any
rule or agreement that is in conflict with it. Such a norm, it is said, must be fol-
lowed by all nations of the world and its nature is such that no derogation is per-
mitted from such a rule.
The formal establishment of the concept of jus cogens norms happened by way of
Vienna Convention on the Law of Treaties, 1969. The now-famous Article 53 of the
VCLT specifies that ìA treaty is void, if at the time of its conclusion, it conflicts
with a peremptory norm of general international law. For the purposes of the
present Convention, a peremptory norm of general international law is a norm
accepted and recognized by the international community of States as a whole as a
norm from which no derogation is permitted and which can be modified only by a
subsequent norm of general international law having the same character.î This
foregoing section provides the least amount of clarity on how exactly a jus cogens
norm is born. However, one thing that is clear is that it is a norm which is ac-
cepted and recognized by the international community of States as a whole.
In this regard, however, it is also important to look at Article 66 of the VCLT,
which specifies that ìAny one of the parties to a dispute concerning the applica-
tion or the interpretation of Article 53Ö by a written application, submit it to the
International Court of Justice for a decision unless the parties by common con-
sent agree to submit the dispute to arbitration.î Therefore, it is the International
Court of Justice that ultimately decides what a jus cogens norm is, if thereís dis-
agreement between states. This aspect assumes significance as States are willing
to raise the status of an ordinary norm to the level of jus cogens in order to sup-
port their contention in court. Here critiques are quick to point out that this is
done for selfish reasons by the State. The fact of the matter is that by way of these
submissions itself, the International Court of Justice gets the much-needed op-
portunity to opine on the matter at least.
Jus Cogens and hierarchy amongst sources of International Human Rights Law
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Under domestic law, there is a clear constitutional normative hierarchy Size
amongst
the various legal norms that are to be followed. For example, in the Indian legal
system, we have laws made by the Parliament which are the supreme law of the
land. Thereafter, we have judicial interpretations which further expand the scope
and applicability of these laws. Of course there are other sources of law that we
need to look at in India, but the point we come across is that we know where to
look and an what order. However, this is not true in the international arena, where
there is no clear constitutional normative hierarchy in fact there is no one consti-
tution that states abide by !
The foregoing situation becomes more and more complicated with the prolifera-
tion of multiple international courts (like ECtHR, ICJ, ICC among others), along
with specialized agencies that deal with subject-specific issues only. With so
much to look at, the question becomes where to look first for an internationally
binding norm? The answer to this is not simple. However, we look at the various
Jus Cogens norm on how they fare.
Article 38 (1) of the Statute of the International Court of Justice lays down the fol-
lowing sources of law that the ICJ is to look at before giving its decision: (a)
International Conventions, (b) International Custom, (c) General Principles of law
recognized by civilized nations, and a subsidiary means i.e. (d) judicial decisions
and the teachings of the most highly qualified publicists of various nations. From
the foregoing it is very clear that the drafters of the Statute did in fact contem-
plate some hierarchy amongst the sources listed there.
On similar lines, Article 53 of the Vienna Convention on the Law of Treaties, 1969
(VCLT) provides that a treaty will be void ìif, at the time of its conclusion, it con-
flicts with a peremptory norm of general international lawî. Further, Article 64 of
VCLT lays down that if a new peremptory norm of general international law
emerges, any existing treaty which is in conflict with that norm becomes void and
terminates.
Now, having a cumulative look at the foregoing provisions, it wouldnít be wrong
to say that there is a certain level of normative hierarchy within international law.
This is especially in light of Article 103 of the UN Charter which says, In the event
of a conflict between the obligations of the Members of the United Nations under
the present Charter and their obligations under any other international agree-
ment, their obligations under the present Charter shall prevail.
Given the foregoing, along with Article 64 of VCLT, it wouldnít be wrong to point
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out that Jus Cogens norms sit right at the top of the ladder amongst Font Sizeof
international human rights law. Moreover, given the fact that these norms defeat
the provisions of any conflicting pre-existing treaty, it also wouldnít be wrong to
point out that in the context of human rights, Jus Cogens tends to play a very im-
portant role.
The question also arises of the fate of Jus Cogens norms in case of conflict be-
tween UN Charter obligations, Security Council Resolutions and Jus Cogens
norms. The argument has been summed up beautifully by Mr. Zenovi? in his re-
search paper titled ìHuman rights enforcement via peremptory norms a chal-
lenge to state sovereignty:
In the authorís view, in the case of conflict between UN Charter obligations or SC
decisions and jus cogens norms, the latter should prevail by the very essence of
their normative capacity. These are the values that the international community
recognized as non? derogable and no treaty as stipulated in the Vienna
Convention, reflecting the customary law, can be superior to them. The UN
Charter is formally a multilateral treaty, the expression of the will of the signatory
states. On the one hand the UN Charter, due to its extraordinary significance, is
one of the treaties in which peremptory norms can be identified. On the other
hand, if jus cogens is a reflection of existing law, a form of customary law that ex-
isted in the international legal order, it is clear that the UN charter and its inter-
pretation necessarily need to correspond to these norms. Jus cogens is a dynamic,
changeable concept, evidence of the legal and political status quo of the interna-
tional community. International law itself changes constantly and rapidly. That is
a reason more to acknowledge the primacy of jus cogens especially when it
comes to their applicability.
Legal effects of Jus Cogens
As discussed in the preceding paragraph, Jus Cogens sits right at the top of the
ladder when it comes to the hierarchy of rules in the international normative or-
der. Now, because of this the most conspicuous consequence of this higher rank
is that the principle at issue cannot be derogated from by States through interna-
tional treaties or local or special customs or even general customary rules not en-
dowed with the same normative force.
The jus cogens nature of the prohibition implies that such prohibition has at-
tained the level of a fundamental standard of the international community as a
whole. Now, at the inter-state level, this principle serves to internationally de-le-
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gitimise any legislative, administrative or judicial act authorisingIncrease
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act going
against this fundamentally recognized principle. This implies that if a state were
to authorize measures (say ëtortureí), then such measures would not be accorded
international legal recognition. And in fact, proceedings could be initiated by peo-
ple having the requisite locus standi to declare the said measures as void ab initio.
What is even more important is that perpetrators of such measures may never-
theless be held criminally responsible for torture, whether in a foreign State, or in
their own State under a subsequent regime. As the International Military Tribunal
at Nuremberg put it: individuals have international duties which transcend the
national obligations of obedience imposed by the individual State. In other words,
this principle directly limits the sovereignty of states to enter into contractual re-
lations which might be detrimental to human rights recognized as jus cogens.
At the individual level, the effect is that every State becomes entitled to investi-
gate, prosecute and punish or extradite individuals accused of torture, who are
present in a territory under its jurisdiction. Other consequences appear to be that
such measures which go against the fundamentally recognized principles may not
be covered by the statute of limitations, and in fact must not be excluded from
extradition under any political offence exemption.
To conclude in the words of the Inter-American Commission on Human Rights
Norms of jus cogens derive their status from fundamental values held by the in-
ternational community, as violations of such peremptory norms are considered to
shock the conscience of humankind and therefore bind the international commu-
nity as a whole, irrespective of protest, recognition or acquiescence.î Hence, the
foregoing legal effects.
Human Rights norms as Jus Cogens v. State Sovereignty
States enter into treaties and agreements with other states on a voluntary basis.
Only when they consent to the substance in the treaties, they become signatories
to such treaties. Now, Jus Cogens aims right at the heart of this state consent as
states are bound by this fundamental norm even if the states do not agree to it.
Accordingly, the discussion of whether or not Jus Cogens norms actually trump
State Sovereignty is a lengthy one. In fact, scholars are fully divided on this one.
One the one hand, we have scholars who argue that Jus Cogens is a norm that
trumps all defences including State Sovereignty, whereas there are others who
argue that Jus Cogens does not trump State Sovereignty. Given that no one an-
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swer has been reached in this debate, it is important to especially Font argu-
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ments of scholars who argue in favour of state sovereignty.
Given how jus cogens has been articulated in Articles 53 and 64 of VCLT, it seems
difficult to believe that it wouldnít be able to trump every other rule of interna-
tional law. Having said that, let us look at some of the arguments put forth by the
supporters of this contention: (1) Jus Cogens rule prohibits a certain conduct. The
same rule does not bar states from relying on state immunity before national
courts. (2) Denial of state sovereignty could result in judicial chaos as States
would potentially be subject to a very large number of claims. (3) Such trials could
take place before the courts of states not inclined to decide fairly with regard to
the defendant state. For example: Iran sits in judgment over the alleged war
crimes committed by Israel or Pakistan sits in judgment over the alleged atroci-
ties committed by India in the Jammu and Kashmir enforcing their notion of jus
cogens.
To the first point, it could possibly be argued that every substantive jus cogens
norm must be reasonably presumed to contain an enforceability element to it as
well, so that the defence of ëstate sovereignty must be limited to a certain extent
to pave the way for its implementation. Moreover, the existence of jus cogens
norms without giving it the requisite teeth for its enforcement raises doubts
which hit the core of the whole concept.
To the second and third points dealing with judicial chaos, it could be argued that
the very basis of jus cogens norms is the acceptance and recognition by the inter-
national community of states as a whole of the said norm. Therefore, no state may
unilaterally declare that a certain rule forms part of this fundamental principle
and apply its own rules to ridicule the defendant stateís interest. Moreover, judg-
ments based on such a subjective and false understanding of jus cogens would not
be enforceable in any other state of the world. In addition, lifting of this veil of
state sovereignty could possibly also act as an incentive / a deterrent for states to
comply with the most fundamental principle of society, especially in order to
avoid public shaming in national / international courts.
With respect to human rights norms, however, it is important to note that on June
25, 1993, representatives of 171 States adopted by consensus the Vienna
Declaration and Programme of Action of the World Conference on Human Rights
after presenting to the international community a common plan for the strength-
ening of human rights work around the world. Now, the Vienna Declaration and
Program of Action marks the culmination of a long process of review and debate
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over the current status of human rights machinery in the world.Increase Font Size
It also marks the
beginning of a renewed effort to strengthen and further implement the body of
human rights instruments that have been painstakingly constructed on the foun-
dation of the Universal Declaration of Human Rights since 1948.
Paragraphs 4 and 5 of this declaration are of utmost importance for the purposes
of our discussion: It says:
The promotion and protection of all human rights and fundamental freedoms
must be considered as a priority objective of the United Nations in accordance
with its purposes and principles, in particular the purpose of international coop-
eration. In the framework of these purposes and principles, the promotion and
protection of all human rights is a legitimate concern of the international com-
munity. The organs and specialized agencies related to human rights should
therefore further enhance the coordination of their activities based on the con-
sistent and objective application of international human rights instruments.
All human rights are universal, indivisible and interdependent and interrelated.
The international community must treat human rights globally in a fair and equal
manner, on the same footing, and with the same emphasis. While the significance
of national and regional particularities and various historical, cultural and reli-
gious backgrounds must be borne in mind, it is the duty of States, regardless of
their political, economic and cultural systems, to promote and protect all human
rights and fundamental freedoms.
Now, even though the legal character of this declaration is ënon-bindingí, its im-
portance in how it emphasizes the understanding of human rights on a global
platform cannot be easily ignored. This declaration in fact can be seen as laying
proper emphasis on developing effective international cooperation for the reali-
sation of purposes set forth in the Universal Declaration of Human Rights, 1948.
This shift can also be looked at suggesting a more ëagreeableí approach by the in-
ternational community of states, especially and solely vis-vis human rights norms.
This change was also reflected in the Barcelona Traction Case (Belgium v. Spain),
where the Belgian Government sought reparation for damage claimed to have
been caused to Belgian nationals, shareholders in the Canadian Barcelona
Traction Company, by the conduct of various organs of the Spanish State. One of
the preliminary arguments of the Spanish Government was to challenge the ca-
pacity of the Belgian Government to bring the said suit to the International Court
of Justice, which the judges declined. In this regard, it has been observed by Mr.
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Zenovi? in his research paper titled ìHuman rights enforcement Font Size
via peremptory
norms ñ a challenge to state sovereignty:
The change in international legal values was also reflected in the case law of the
International Court of Justice even before the end of cold war, regarding locus
standi of a state before the court in matters considering jus cogens the Barcelona
traction case was the cornerstone of the recognition that jus cogens norms give
rise to the legal interest of any state to start proceedings. Although a procedural
aspect, it might have significant consequences regarding the different level of hu-
man rights record among states.
Judicial decisions: Jus Cogens v. State Sovereignty
International Judges also appear to be somewhat divided in their opinion. Though
majority of the opinion favour state immunity, there are those minority of judges
who feel the rule should be otherwise. Let us have a look at what these courts
have held.
The European Court of Human Rights has not accepted the proposition that
States are no longer entitled to immunity in cases regarding serious violations of
international humanitarian law or human rights law. In 2001, in Al-Adsani v.
United Kingdom, it concluded:
Notwithstanding the special character of the prohibition of torture in interna-
tional law, the Court is unable to discern in the international instruments, judicial
authorities or other materials before it any firm basis for concluding that, as a
matter of international law, a State no longer enjoys immunity from civil suit in
the courts of another State where acts of torture are alleged.
The following year, once again in another case, the European Court of Human
Rights once again while upholding the state immunity argument, said:
The Court does not find it established, however, that there is yet acceptance in
international law of the proposition that States are not entitled to immunity in re-
spect of civil claims for damages brought against them in another State for crimes
against humanity.
The International Court of Justice has also had the opportunity to extensively
opine on this issue in Germany v. Italy. It said:
The Court concludes that, under customary international law as it presently
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stands, a State is not deprived of immunity by reason of the factIncrease
that it isFont Size
accused
of serious violations of international human rights law or the international law of
armed conflict.
In the opinion of the Court no such conflict exists The two sets of rules address
different matters. The rules of State immunity are procedural in character and are
confined to determining whether or not the courts of one State may exercise ju-
risdiction in respect of another State. They do not bear upon the question
whether or not the conduct in respect of which the proceedings are brought was
lawful or unlawful For the same reason, recognizing the immunity of a foreign
State in accordance with customary international law does not amount to recog-
nizing as lawful a situation created by the breach of a jus cogens rule
Having talked of the judgement overall, it is also important to look at the strong
dissenting opinion of Judge CanÁado Trindade. He notes:
One cannot embark on a wrongfully assumed and formalist lack of conflict be-
tween procedural and ìsubstantive rules, depriving jus cogens of its effects and
legal consequences. The fact remains that a conflict does exist, and the primacy is
of jus cogens, which resists to, and survives, such groundless attempt at its de-
construction. There can be no prerogative or privilege of State immunity in cases
of international crimes, such as massacres of the civilian population, and depor-
tation of civilians and prisoners of war to subjection to slave labour: these are
grave breaches of absolute prohibitions of jus cogens, for which there can be no
immunities.
Jus cogens stands above the prerogative or privilege of State immunity, with all
the consequences that ensue therefrom, thus avoiding denial of justice and im-
punity. On the basis of all the aforesaid, my firm position is that there is no State
immunity for international crimes, for grave violations of human rights and of in-
ternational humanitarian law. In my understanding, this is what the International
Court of Justice should have decided in the present Judgment.
Conclusion
To conclude, it must be said that the debate between Jus Cogens norms and State
Sovereignty still lingers, however, the position legally seems to be clear as of now
and tilts against Jus Cogens.
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Reference
1. The Effect of Jus Cogens Norms: Whoever opened the Pandora’s Box, Did You
Ever Think About the Consequences by Ulf Linderfalk.
2. The Prohibition of Torture as an International Norm of Jus Cogens and its
Implications for National and Customary Law by Erika De Wet.
3. Peremptory Norms or Jus Cogens in International Law by Faysal Mustafa.
4. The Creation of Jus Cogens- Making Sense of Ar.53 of the Vienna Convention
by Ulf Linderfalk.
International Human Rights Law Copyright © by Prof. Nitin Gomber. All Rights
Reserved.
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